Brief of Respondent for Fisher V. University of Texas at Austin; 11-345
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No. 11-345 In the Supreme Court of the United States ABIGAIL N. FISHER v. UNIVERSITY OF TEXAS AT AUSTIN, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT BRIEF FOR NATIONAL ASSOCIATION OF BASKETBALL COACHES, WOMEN’S BASKETBALL COACHES ASSOCIATION, BLACK COACHES & ADMINISTRATORS, BETH BURNS, JOHNNY DAWKINS, JAMIE DIXON, PAUL HEWITT, BEN HOWLAND, TOM IZZO, PHIL MARTELLI, JOANNE P. MCCALLIE, MIKE MONTGOMERY, SUE SEMRAU, ORLANDO “TUBBY” SMITH, CHARLI TURNER THORNE, COQUESE WASHINGTON AND ADDITIONAL INDIVIDUALS AS AMICI CURIAE IN SUPPORT OF RESPONDENTS THEODORE W. RUGER Counsel of Record PROFESSOR OF LAW UNIVERSITY OF PENNSYLVANIA LAW SCHOOL 3501 Sansom Street Philadelphia, PA 19104 (215) 573-6018 [email protected] [Additional Amici On Inside Cover] LENNIE ACUFF, BETH BASS, CHARLIE BROCK, MILAN BROWN, TIM CARTER, CLAUDETTE CHARNEY, CARMEN DOLFO, RICH ENSOR, LISA MISPLEY FORTIER, LARRY GIPSON, KELLY GRAVES, JIM HANEY, MIKE JARVIS, BETTY JAYNES, TRENT JOHNSON, AARON JOHNSTON, ERNIE KENT, MARY KLINGER, PATRICIA MANNING, REGGIE MINTON, MATT MITCHELL, PAGE MOIR, VIC SCHAEFER, MARY BETH SPIRK, GARY STEWART, CHRISTY THOMASKUTTY, ANDREA WILLIAMS, CLEVE WRIGHT- GANNON, TOBY WYNN, AND ERNIE ZEIGLER The individual amici listed on this page and the prior page are participating in their individual capacity and not on behalf of any affiliated college or university. i TABLE OF CONTENTS Page Interest of amici ................................................................... 1 Summary of the argument ................................................. 3 Argument.............................................................................. 9 I. The past and present of intercollegiate athletics yields lessons about the ongoing relationship between athletic participation and learning for all athletes ................................... 9 II. Our experience coaching student-athletes demonstrates that achieving true diversity is crucial for both student-athletes and the broader college community .................................. 17 A. The diversity of the broader university interacts with the diversity of our teams in multiple ways ............................... 20 B. When universities are deprived of the ability to build a racially diverse class, minority student-athletes are often a substantial number of the minorities on campus, which undermines the universities’ ability to build true diversity ....................................................... 22 C. Petitioner’s argument would force our institutions to rigidly ignore all of these goals, which cannot be achieved without individualized consideration of race ................................................................ 24 Conclusion .......................................................................... 26 ii TABLE OF AUTHORITIES Page(s) CASES Fisher v. Univ. of Tex. at Austin, 631 F.3d 213 (5th Cir. 2011) ........................ 9, 20, 24 Gratz v. Bollinger, 539 U.S. 244 (2003)................................................. 23 Grutter v. Bollinger, 539 U.S. 306 (2003)......................................... passim Smith v. Univ. of Wash., 392 F.3d 367 (9th Cir. 2004), cert. denied 546 U.S. 813 (2005)................................................. 23 Univ. of Cal. Regents v. Bakke, 438 US 265 (1978)............................................... 4, 19 MISCELLANEOUS Bill Bradley, Values of the Game (1998) .................. 13 Ty M. Cruce & F. Nelson Laird, What’s the Score? Diverse Experiences Among Collegiate Athletes and Non-Athletes (2009) ................................................................. 15, 16 Antonya English, Former Vanderbilt Star Perry Wallace Learned to Overcome Hatred as Southeastern Conference’s First Black Basketball Player, Tampa Bay Times, Jan. 25, 2009, available at http://tinyurl.com/8ntky5r .............................. 10, 11 iii Scott Hirko, Do College Athletes Learn from Racial Diversity in Intercollegiate Athletics? A study of the Perceptions of College Athletes form the State of Michigan (2007) ..................................................... 16 Scott Hirko, Intercollegiate Athletics and Modeling Multiculturalism, 148 New Dir. Higher Ed. 91 (2009) ..................................... 15 Rhonda Hyatt, Barriers to Persistence Among African American Intercollegiate Athletes, 37 Coll. Stud. J. 260 (2003) ................... 14 Austin Murphy, Obama Discusses His Hoops Memories at Punahou High, Sports Illustrated, May 21, 2008 available at http://tinyurl.com/7dq9j5d .................................... 17 NCAA, 2009-2010 Race and Gender Demographics Report (2010), available at http://tinyurl.com/c9rqfdb. ................................... 21 NCAA, 2009-2010 Student-Athlete Ethnicity Report (2010), available at http://tinyurl.com/3y9btlh. ............................... 5, 13 NCAA, How Do Athletic Scholarships Work? (2011), available at http://tinyurl.com/c9rqfdb. ................................... 17 Eric Neel, All or Nothing, ESPN, Nov. 13, 2008, available at http://tinyurl.com/6qeqw3 .................................... 12 One United Michigan Press Conference, Apr. 6, 2006, available at http://tinyurl.com/cthwmgh. ................................ 24 iv Bill Pennington, In 1956, a Racial Law Soured Harvard on a Trip to New Orleans, N.Y. Times, Mar. 14, 2012, available at http://tinyurl.com/cus2pjt. .............. 12 Dawn R. Person & Kenya M. Lenoir, Retention Issues and Models for African American Male Athletes, 80 New Dir. Stud. Servs. 79 (1997) ............................................ 14 Joseph Price & Justin Wolfers, Racial Discrimination Among NBA Referees, 125 Q. J. Econ. 1859 (2010) ................................... 15 Earl Smith, Race, Sport, and the American University, 17 J. Sport & Soc. Issues 206 (1993) ....................................................................... 19 Rebecca Trounson, A Startling Statistic at UCLA, L.A. Times, June 3, 2006, available at http://tinyurl.com/dy58neh ............. 22 Peter D. Umbach et al., Intercollegiate Athletes and Effective Educational Practices: Winning Combination or Losing Effort? 47 Res. In Higher Educ. 709 (2006) ................................................................ 20 Univ. of Texas at Austin, Implementation and Results of the Texas Automatic Admissions Law (2008), available at http://tinyurl.com/bobwsrc. .................................. 23 Press Release, Women’s Sports Found., 40 Women Who Have Made a Significant Impact on Society After Playing High School or College Sports (May 17, 2012), available at http://tinyurl.com/7hxgoh5. ............ 11 v Lisa E. Wolf-Wendel et al., There’s No “I” in “Team”: Lessons from Athletics on Community Building, 24 Rev. Higher Ed. 369 (2001) ................................................... 14, 16 Linda T. Wynn, Perry E. Wallace Jr., in The Tennessee Encyclopedia of History and Culture (2010), available at http://tinyurl.com/clhqtsc ..................................... 10 1 INTEREST OF AMICI1 Amici are organizations representing over 12,000 current and former collegiate basketball coaches and collegiate athletic administrators at the NCAA, NAIA, and community college levels, as well as forty-three current and former coaches and administrators who have signed in their individual capacity.2 Collectively the amici organizations and individual coaches represent hundreds of years of experience working with tens of thousands of student-athletes. In this long experience we have seen firsthand the dramatic and lifelong benefits that our team members derive from working and competing alongside individuals of diverse backgrounds. We are also keenly aware of the importance of not isolating diversity at our university within the athletic department or other subsets of the whole institution. Our student-athletes, and all of the students who attend our institutions, receive the best education when they are able to interact with others within a university community that is broadly diverse across its entire scope. We file this brief to underscore these points and to urge this Court to permit our institutions to continue to use individualized discretion 1 The parties have consented to the filing of amicus curiae briefs in support of either party or of neither party, in letters on file with the Clerk. No counsel for any party authored this brief in whole or in part, and no person or entity, other than amici curiae, their members, or their counsel, made a monetary contribution intended to fund the preparation or submission of this brief. 2 Individual signatories are expressing their own views, and are not signing on behalf of the institutions where they work or have worked. 2 in forming student bodies that reflect university judgment on how to foster such broader and more nuanced diversity on campus. Each of the amici organizations has a history of seeking to foster conditions at our institutions that enhance the experiences of athletes, coaches and administrators far beyond the basketball court. The National Association of Basketball Coaches (NABC), originally founded in 1927 by University of Kansas coach Phog Allen, has sought in recent years to ensure that our own coaching ranks and the leadership of our athletic departments better reflect the diversity of our athletic teams. The Women’s Basketball Coaches Association (WBCA) has for the past three decades worked to promote opportunities for collegiate academic and athletic success to female basketball players from a wide range of racial and